I'm a privacy pragmatist, writing about the intersection of law, technology, social media and our personal information. If you have story ideas or tips, e-mail me at khill@forbes.com. PGP key here.
These days, I'm a senior online editor at Forbes. I was previously an editor at Above the Law, a legal blog, relying on the legal knowledge gained from two years working for corporate law firm Covington & Burling -- a Cliff's Notes version of law school.
In the past, I've been found slaving away as an intern in midtown Manhattan at The Week Magazine, in Hong Kong at the International Herald Tribune, and in D.C. at the Washington Examiner. I also spent a few years traveling the world managing educational programs for international journalists for the National Press Foundation.
I have few illusions about privacy -- feel free to follow me on Twitter: kashhill, subscribe to me on Facebook, Circle me on Google+, or use Google Maps to figure out where the Forbes San Francisco bureau is, and come a-knockin'.

Why Your Cell Phone Is More Private in Ohio than in California

As a place to live, California has a lot going for it: the Pacific Ocean, pleasant weather, celeb spottings. But if you’re concerned about the police perusing the contents of your smartphone without a warrant, you might prefer to spend your time further east in the Buckeye state.

The Supreme Courts of California and Ohio have come down on opposite sides of the question of whether police need a warrant to search an arrested person’s cellphone. California may be perceived as the tech savvy state thanks to playing host to Silicon Valley, but when it comes to how the law applies to technology, its analysis is rather simplistic. In an opinion issued Monday, California’s court said, “No warrant needed,” equating a cell phone with a pack of cigarettes — Hmmmm. Cell phones are addictive, I suppose — referencing a Supreme Court decision that allowed police to search a cigarette package in an arrested person’s pocket that turned out to contain heroin.

Ohio’s court, on the other hand, ruled in December 2009 that a cell phone is more like a laptop, holding vast amounts of personal information and thus subject to greater privacy protections — namely, a warrant for searching it.

Two widely divergent decisions within a month a year of one another. Regular readers know I like the “tale of two lawsuits” genre of stories, in which different judges look at the same technology and come to opposite conclusions. Let’s look a little more closely at these two cases — both involving drug dealers and their cellphones.

In Ohio, Antwaun Smith’s cellphone was seized after officers had one of his clients call him over to her house for a crack cocaine delivery. At some point, the police went through the phone. The prosecution later used the phone’s call records and numbers, though not seized photographs, to help convict Smith. Courts have previously found that the police can search an arrested person’s body and any “containers” they’re carrying — like a cigarette case or a purse. The judges in Ohio determined, though, that a cellphone holds too much digitized information to be considered just a “container.” Our smartphones are truly immense and limitless containers — granting access to email, contacts, photos, Google map history and Facebook accounts. Given that, the court determined that cellphones are akin to a laptop — which is entitled to greater privacy, unless you’re crossing the border — and that a police officer’s search of Smith’s phone without a warrant was improper [PDF].

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

The problem with the California decision is that the court failed to distinguish between a physical search of the cell phone — which is what the Supreme Court opinions contemplate — and a search of the contents of a cell phone. Experience suggests that people maintain a reasonable expectation of privacy in the contents of cell phones because they have the capacity for storing immense amounts of private information.

I have written a more detailed comment at: http://stockycat.blogspot.com/2011/01/california-supreme-court-has-held-that.html

There, folks can find a link to an upcoming law review article on this issue.

All of this information is well and good Ernie, but I’ve looked over all your blog entries visible without going to archives and it seems every one is either 100% about the iPhone or involves some signifigant iPhone angle. I understand it’s a dominating new technological angle you’re living with, but some people don’t even have iPhones. I just wanted to point out that you’ve changed the direction of the entire site to Apple, and mainly one of their products, instead of the law and technology, or really even any other technology. http://www.etech.com/cell-phones-watch-cell-phones–c1144_1306